Bangladesh: Has the 16th Amendment created a vacuum?

The Supreme Court of Bangladesh has upheld the High Court ruling, scrapping the 16th Amendment to the Constitution and rejecting the government’s appeal in this regard. The prime minister has said that this verdict of the Supreme Court will act as an obstacle to reverting to the 1972 Constitution.

This is the first time the Supreme Court has scrapped any amendment to the constitution brought about by the present government. The move is being considered significant. As this verdict also involved the issue of impeaching judges of the apex court, there were doubts from the very outset as to whether the government’s appeal would finally be passed. The question now is whether this verdict will create any legal vacuum in the matter of impeaching judges.

The apex court in Bangladesh indicates the Supreme Court’s Appellate Division and the High Court division. The Chief Justice and the judges of both divisions are appointed by the president. After appointment, no one takes position as judge in the Supreme Court without taking oath. When the Bangladesh constitution was originally drawn up, the age of retirement for judges was 62. Later, by means of the 7th and the 14th amendments, the retirement age was pushed up to 65 and then 67.

Bangladesh’s original constitution, that is the one of 1972, has provision for parliamentary impeachment of judges for misdemeanours or incompetence. The provision was that the removal of a judge through impeachment required an inquiry, followed by a submission by two-thirds of the parliamentary members which would come into effect by means of presidential order.

The 4th Amendment stayed the impeachment system, and the rule was adopted for the judges to be removed after the president granted them a justified change to defend themselves. Later, the 5th Amendment brought about by military orders, provided for the removal of judges to the dealt with by the judicial council. This council comprised the Chief Justice and the next two judges in order of seniority. The council had the authority to investigate the physical or mental incompetence of a judge after orders were issued by the president.

In the 1972 constitution, judges were barred from taking up any office of profit of the republic after retirement. The fifth amendment allowed judges to be appointed after retirement to judicial and quasi-judicial posts and they were qualified to practice in the Appellate Division after retiring from the High Court Division. Then the 13th Amendment qualified judges, after retirement, to be appointed as chief advisor and advisors of a neutral caretaker government.

When the Supreme Court abolished the 5th, 7th and 13th amendment to the constitution, it became necessary to implement the 5th amendment. As a result of abolishing the said amendments, according to the General Clauses Act, unless any other objective was expressed, nothing ineffective of non-existent would be reinstated at the time when the abolition came into effect.

Though the constitution is the highest law of the land, the General Clauses Act is applicable to the constitution just as it is applicable to the other laws promulgated by the parliament. When the 5th amendment was enacted, neither the provision for the president to give the judges a chance to defend themselves regarding their removal, nor the provision for a Supreme Judicial Council, was in effect. The verdict given by the Appellate Division of the Supreme Court was in favor of the latter as it was considered to be the more transparent of the two. And so the 5th Amendment reinstated the Supreme Judicial Council system.

The copy of the amended constitution printed by the law ministry after the abolition of the 5th amendment, reflected the provision in the 1972 constitution which barred reappointment of Supreme Court judges after retirement. And when the 15th amendment was drawn up, the 5th amendment’s clauses in this regard remained intact, while the provisions of the 13th amendment were scrapped.

The procedure followed in the case of removing judges of the Supreme Court, is also applicable for the Chief Election Commissioner and the election commissioners, the Chairman of the Public Service Commission and its members, and the Comptroller and Auditor General. It also applies to the non-constitutional offices of the National Human Rights Commission Chairman and members and the Anti-Corruption Commission Chairman and commissioners.

Though the 5th and 7th amendments were annulled, the 15th amendment came into effect, retaining the provisions of those two amendments regarding removal of Supreme Court judges, extension of age of service, appointment to judicial and quasi-judicial posts and practicing in the Appellate Division after retirement. Later, by means of the 16th amendment, the Supreme Judicial Council system was removed and the provision for parliamentary impeachment was reinstated. The General Clauses Act does not have any provision to reinstate the Supreme Judicial Council system when the Supreme Court scrapped the 16th amendment as this system was non-existent at the time.

Most democratic countries of the world, such as the UK, the US, India, etc, follow the parliamentary impeachment system for the removal of Supreme Court judges. Parliamentary impeachment is in keeping with democratic system of government and, just as there is provision for the Supreme Judicial Council to carry out an inquiry before removal, in this system too there is provision for inquiry to be carried out by a commission comprising qualified persons. The accused judges will have the chance to defend themselves during the inquiry and after the inquiry during the parliamentary standing committee hearing.

In the case of parliamentary impeachment, before the proposal for removal is raised in the parliament, at first the commission runs an inquiry and then a hearing is conducted by a parliamentary standing committee where the judge is given a chance for defense. As different persons are included in the initial inquiry and the later hearing, there is no precedent in the countries where this system exists, of any judge being subject to harassment by decisions based on vested interests.

As in Bangladesh, in the parliamentary system of other countries too, the support of the majority members of parliament is required to pass a common law and support of two-thirds is required for constitutional amendment. When a party wins a landslide victory in the parliamentary election, there is ample chance of securing two-thirds support. Very rarely does any one party in the parliamentary elections of any country manage to form a government of two-thirds majority. Like constitutional amendment, parliamentary impeachment also requires two-thirds support and so there is no chance a judge being unnecessarily and unjustly harmed.

In the parliamentary system of other countries of the world, a member of parliament can cast his vote as he wishes. This is no so in Bangladesh. As in the case of both the two major political parties of the country, for long the head of the party and the head of the government is one and the same person. And if a member of parliament votes against the party decision, his seat will be rendered vacant and so there is no scope to take a stand outside that of the party chief and the party. And so armed with a two-third majority in parliament, it is easy to remove a judge in keeping with the decision of the party chief or the party.

Pakistan is one of the few countries where the system of the Supreme Judicial Council still exists. Pakistan does not have a good track record of democracy and most of the time since its inception, the country was run under military rule with the assistance of the judiciary. Removing judges by means of the Supreme Judicial Council amounts to carrying out a trial of one’s own wrongdoings. This is contradictory to the policy accepted worldwide, that no one should be the judge of his own cause.

According to the constitution of Bangladesh, the president can be removed by two-thirds of the parliamentary members’ votes. As the head of state, the president is placed above all others of the state. It is only logical for the law that is applicable for the president’s removal, be applicable to the removal of the Chief Justice and all other judges of the Supreme Court whom have been appointed.

Having been elected by the people, the members of parliament in Bangladesh represent the people of their respective areas. As the people are the source of all power in the republic, it is assumed that the laws they draw up are in the interests of the people. The parliament has the sovereign authority to promulgate laws. There should be no doubt among anyone that the laws, drawn up for the benefit and welfare of the people, are in the interests of the greater population of the country.

Though the members of parliament are elected through direct vote of the people, there is chance of incompetent and controversial persons winning seats in parliament if the election is not transparent. Similarly, in the case of appointing judges, if there is no law or policy, there is chance of incompetent and controversial persons of certain party ilk being appointed as judges. This is not conducive to democracy, the judiciary, and the development and growth of the nation.

The constitution maintains that if any law enacted by the parliament is contradictory to the constitution, that law is considered to be void. As the matter of removing judges by means of impeachment is ensconced in the 1972 constitution, there is scope to question whether this act is contradictory to the fundamental framework of the constitution. And after the Appellate Division of Supreme Court declared the 16th amendment to be abolished, then there is no rule in place regarding the removal of judges. Clearly the abolition came into effect on the date that the Appellate Division of the Supreme Court passed the decision, and at the time the Supreme Judicial Council was ineffective and non-existent. For that reason, the Attorney General has remarked that the decision of the Appellate Division has created a vacuum. It is the responsibility of the parliament to fill that vacuum. Until the parliament comes up with a new law to replace the provision for parliamentary impeachment of judges as abolished by the Supreme Court, the vacuum will remain there.

When enacting a law, the parliament gives priority to the benefit and welfare of the country and the people. That is why the contradictory stands of the parliament and the judiciary regarding an important issue like impeachment of judges, does not bode well for either democracy or the judiciary. Rather than assessing who has the greater power, it would be conducive to the nation’s future for the concerned quarters to take a decision that, above all, would benefit the country and the people.

[Ikteder Ahmed former District Judge and Registrar, Bangladesh Supreme Court. He can be reached at his E-mail: iktederahmed@yahoo.com]

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